Environment

January 27, 2019

It’s January, so like much of the country we’re cold and staying in. But luckily, there’s a small critical mass of really excellent documentary films available to watch at home, which cover issues of great concern to PopTort readers (and our mothership, the Center for Justice & Democracy). So with that, start poppin’ the popcorn as we introduce The First Annual PopTort Film Festival!

Bleed Out. When if comes to medical malpractice, there’s no better film than Bleed Out, by our friend Steve Burrows. The film is on HBO, and streaming on HBO Now and HBO Go.

At times funny, at times tragic, this entertaining and completely relatable story shows: how medical errors and negligence destroy patients' lives and ruin families; in incredible detail the astronomical medical costs of negligence including costs to taxpayers; the stupidity of “tort reform” and the enormous challenges facing lawyers and clients trying to bring cases especially where tort limits exists; and the completely messed up health care system made far worse by the colossal number of preventable errors.

Marty Makary of Johns Hopkins, who first figured out that medical errors are the third leading cause of death, is the film’s expert. You can find many of his articles in the Center for Justice & Democracy's Medical Malpractice Briefing Book. By the end of the film, you how the system can allow crooked, lying, unethical health care providers to get away with horrendous negligence, and is rigged against injured patients and their families.

By the way, there’s another new patient safety documentary out, called To Err is Human, which you can rent on various streaming services including iTunes and Amazon Prime. We have not seen this film yet – it may be more aimed at medical audiences based on the screening schedule. But it is endorsed by our good friend Helen Haskell, Founder of Mothers Against Medical Errors, who is a great advocate for patient safety and protecting the legal rights of injured patients.

The Devil We Know, which you can stream on Netflix or rent on various streaming services.This film tells an unbelievable story that we started covering at the ThePopTort in 2008 and through the next seven years, about how Dupont knowingly polluted water supplies of two West Virginia and four Ohio water districts with C-8, the chemical used to manufacture Teflon, and then tried to cover it up.” (Actually, by now they’ve poisoned 99% of humanity.) The film includes a few friends of ours, including brilliant West Virginia lawyer Harry Deitzler, who figured out how to create a valid epidemiological study to nail Dupont by using “the $70 million health and education fund from the [class action] settlement to pay people $400 each to participate” in it. Gotcha, Dupont!

The Bleeding Edge, on Netflix. The Bleeding Edge is to dangerous medical devices what Bleed Out is to medical malpractice. Two great films with blood in their title. If you're confused, watch both! We covered The Bleeding Edge last summer. Here’s what we said then – and repeat now:

[There is] a compelling (yet terrifying) new “must-see” documentary now streaming on Netflix called “The Bleeding Edge.” Here’s the Los Angeles Times’ lead paragraph about it:

If body-horror auteur David Cronenberg had dramatized any of the nightmarish stories in Kirby Dick and Amy Ziering’s medical documentary “The Bleeding Edge,” you wouldn’t hesitate to call it a fright film. Such is the grim impact of this investigative, wince-inducing examination of the $400 billion medical device industry, which routinely sends FDA-approved products into the marketplace for use on and in patients without any rigorous clinical safety-testing on humans.

The film shows us the results of this corruption. Not pretty.

Dirty Laundry, now available on Vimeo on Demand, is a powerful expose of the vile asbestos industry. The filmmakers tell a very personal and entertaining story, through which they show, “the stark reality of corporate dissembling and apparent disregard for lives lost, and lives still being placed at risk, from the continued manufacture and use of asbestos, the creation of open asbestos waste sites, and the reckless excavation of contaminated ground.”

Fahrenheit 11/9, now streaming on Amazon Prime and other places. We recommend this film mainly for the startling explanation of the Flint water crisis, which we’ve covered often (e.g. herehere.) (There are other good parts, but allow us to rant a bit. Some parts of the film seem very naive, such as its negative portrayal of hero-of-the-moment, Speaker Nancy Pelosi, ridiculing her as part of an ineffective resistance to Trump. PopTort insiders have always known of her behind-the-scenes genius even when she wasn’t speaker. I can only think these filmmakers were unaware of this and maybe have now woken up to it? Case in point: she ensured that her party stuck together to oppose anti-civil justice bills rammed through the House in early 2017. Because (in part) these bills passed with virtually no bi-partisan support thanks to her leadership, they came to the Senate in a severely weakened state. In fact, none were ever brought up again despite being rushed through the House as high-priority items for the U.S. Chamber of Commerce. Wish the filmmakers understood a little better how Congress works.)

Hot Coffee. Finally, there’s the 2011 HBO film, Hot Coffee – an oldie but goodie, which you can still rent on Amazon or stream on Amazon Prime. We’ve said so much about this film already so if you’ve forgetten, you can read this - or just watch the trailer:

November 08, 2018

Climate isn’t the only environmental disaster we need to worry about, of course. Remember the 2010 Deepwater Horizon/BP oil disaster in the Gulf? Turns out that all those chemical dispersants which “BP applied directly at the spewing wellhead – about a mile below the Gulf of Mexico’s surface – failed to curb the oil’s spread” and made things even worse. (See some of our prior coverage here.) Apparently, no one has yet come up with an alternative plan the next time an explosion like this happens. So there’s that.

But back to climate. Voters in six Western states faced ballot initiatives to make “sweeping changes to environmental regulations.” These, of course, were heavily opposed by oil, gas and mining companies, which vastly outspent proponents of these measures with boatloads of out-of-state money. As a result, the ballot initiatives “largely flopped … including Colorado's increased restrictions on oil and gas drilling, Washington's carbon tax and Arizona's 50 percent renewable energy mandate."

But don’t feel discouraged yet. Consider this. While polluters were dumping money into states to defeat ballot initiatives, and Trump has been engaged in “full-throated … efforts to roll back regulations regarding climate change and other environmental issues,” seven governorships and four state AG flipped from Republican to Democrat this past election, and "[m]any of the new governors made climate change and clean energy part of their campaign platforms."

In other words, state-based actions on climate and clean energy now may be more likely.

"We're going to see a significant increase in litigating and policymaking at the state level with this new leadership," said Hogan Lovells partner Hilary Tompkins, a former solicitor at the U.S. Department of the Interior and counsel to former New Mexico Gov. Bill Richardson. "We're also going to see a lot of legal debates in the courts ramped up against the Trump administration where the states of these newly elected officials are going to be arguing their states' rights to enact policies addressing climate change."…

Expect the legal clashes over these divergent priorities to increase, experts say. Democratic AGs have already launched court challenges to a slew of deregulatory moves from the Trump administration, from the rollback of vehicle GHG standards to the reversal of a rule clamping down on methane emissions from gas wells on public lands.

It's safe to say those AGs have picked up some allies in such fights following Election Day.

Another hopeful note comes from passionate U.S. “climate kids” trying to fix the world before it's destroyed. Yet given the ever increasing rightward, pro-corporate shift of the U.S. Supreme Court, litigation may not be the best path forward - at least not for them, and at least not in the United States.

On the one hand, in Europe, “The Hague Court of Appeal ruled that the preservation of a stable climate system is a fundamental human right and ordered the Dutch government to meet its promises of making sharp cuts in greenhouse gas emissions."

On the other hand, “In the United States, a landmark climate case filed by 21 young Americans, ages 11 through 22, hit a snag at the U.S. Supreme Court.” Although right now, it’s just a snag.

Specifically,

Since it was first filed in 2015 during the Obama administration, the “climate kids” case, backed by some of the country’s top climate scientists, has made unexpected progress, with the U.S. Ninth Circuit Court of Appeals twice ruling that the case should proceed to a trial on its merits. In July, the Supreme Court, while noting that the “breadth of [Plaintiff’s] claims is striking,” nevertheless denied a Trump administration request to halt the suit….

But,

Then, the U.S. Supreme Court weighed in. Chief Justice John Roberts, in a highly unusual step, intervened on the U.S. government’s behalf and ordered a temporary halt to a federal district court trial … just 10 days before the trial was scheduled to begin on October 29. Roberts ordered a stay in the case while the plaintiffs responded to the government’s request to dismiss the suit.

Fortunately, a November 2 SCOTUS order said “it would not intercede in the case, allowing the trial to proceed.” However, “[l]egal analysts say that in all likelihood, the Juliana case will ultimately be rejected by the Supreme Court, which now includes two conservative judges appointed by Trump, Neil Gorsuch and Brett Kavanaugh.”

We shall see. Activists say they are not giving up. And as a result of this week's election, more and more states hopefully will be able to help.

September 21, 2016

You don’t have to be a severely allergic child whose parents – and school nurses – have been shamefully price-gouged by EpiPen-maker Mylan, to feel unjustly treated these days.

For example, if your parents put you in Kiddie Kollege daycare in Franklin Township, NJ before it was shut down in 2006, you probably have mercury poisoning. That’s because, unknown to your parents, Kiddie Kollege was located in a former thermometer factory. According to a class action lawsuit filed against the township and state Department of Environmental Protection (DEP), permits were issued for Kiddie Kollege “even though officials were aware of the previous issues with contamination at the thermometer plant.”

But don’t expect those officials to take much responsibility. This week, the state Supreme Court “found the township and DEP were protected from liability in the case because they are government agencies.” That means “Franklin Township and the state Department of Environmental Protection do not have to contribute to a medical monitoring fund for kids” even though over “100 children were exposed to mercury contamination at Kiddie Kollege” and "[m]any had high levels of mercury in their system when tested.” So sad.

But sad doesn’t even begin to describe the plight of “youth with developmental or intellectual disabilities and serious behavior challenges” condemned to live in facilities run by AdvoServ, “owned by a private equity firm,” which has a “long record of problematic treatment.” In other words, horrible abuse.

Most recently, reportedPro Publica, a teenage girl died at an AdvoServ group home in Delaware. “Attorney Chris Gowen, who has a lawsuit against AdvoServ concerning a different teen, said he has learned workers were manually restraining the girl when she became unresponsive. …” AdvoServ cares “for roughly 700 children and adults in that state, Florida, and New Jersey, and was expanding into Virginia.” Gowen has also sued “on behalf of a young resident who says he was left unsupervised and raped repeatedly by other clients at AdvoServ homes during more than four years there. His neck was also injured during a restraint performed by workers.”

Over in Arizona, if as a child you were exposed to lethal asbestos when your dad came home from work with it all over his clothes, the state Court of Appeals just ruled that Arizona asbestos companies have no duty to help you.

In the first ruling of its kind in Arizona, the judges rejected the contention of survivors of Ernest Quiroz that his father’s employer, Reynolds Metal Co., should be held legally responsible for the son’s mesothelioma, a form of cancer frequently associated with asbestos exposure, and eventual death.

Appellate Judge Jon Thompson, writing for the unanimous court, acknowledged that some states have allowed lawsuits based on “take-home exposure.” But Thompson said that’s not the way Arizona laws are written.…

Boy, if that’s not an invitation to rewrite Arizona’s laws, I don’t know what is.

… 274 pages of emails released under pressure on Wednesday by Gov. Rick Snyder of Michigan show a cynical and callous indifference to the plight of the mostly black, poverty-stricken residents of Flint, who have gone for more than a year with poisoned tap water that is unsafe to drink or bathe in. …

On October 23, 2015, a gigantic, man-made volcano of methane began spewing from a Southern California Gas Company underground natural gas storage facility in Porter Ranch, California, home to 30,000. The leak has been sickening them ever since. Thousands of families have been forced to relocate (although many more are seeking relocation) entire schools have been closed, well- established businesses are shuttering, and the FAA even created a no-fly zone over the area due to fears the leak could be ignited from the air- and there is not clear end in sight. As to its cause, “experts are pointing to an old and leaky safety valve,” which “Sempra (SoCalGas’ parent company)— whose annual revenues exceed $12 billion — opted not to replace the valve because it was not deemed a ‘critical well.’”

“SoCalGas’ response to this disaster is almost as alarming as the impact on the community.” The company’s plans for stopping the leak have failed more than half a dozen times and a new strategy for plugging up the well is likely to take months.

In recent days, there have been a number of articles and blogs comparing these two catastrophes. (See here, here.) The New York Timeswrote this week:

Health officials have tested the [Porter Ranch] air and deemed it safe. Yes, the awful smell from a huge natural gas leak near the Porter Ranch neighborhood may cause vomiting, nosebleeds and other short-term symptoms, they say, but they have assured residents that it does not pose long-term health risks.

Many people here, however, simply do not buy it. And now they look warily toward Flint, Mich., where the switch to a new water supply, which state officials insisted for months was safe, has left children with high levels of lead in their blood.

With Flint as a potent warning, confidence in public agencies has collapsed here after the gas leak. Unconvinced by health department reassurances, residents have turned for guidance to lawyers who are spearheading lawsuits.

But that’s where the legal comparisons may end.

In California, writes theLos Angeles Times, Erin Brockovich and Robert F. Kennedy Jr. are among those involved with at least 25 lawsuits that have been filed so far on behalf of residents and businesses harmed by the gas leak. They have been filed against “Southern California Gas Co and its parent company Sempra Energy, the non-government operators of the leaking gas storage facility.” And they are suing for “negligence, hazardous activity, nuisance and trespass and seek compensation for emotional and physical injuries, as well as for diminished property values.”

But the challenges of filing lawsuits on behalf of Flint, Michigan residents are, sadly, more complicated. Some lawsuits have been filed. But as Reuters explains,

What's holding [other attorneys] back, several lawyers said, is not the facts or the victims, but the prospective targets: The State of Michigan, the city of Flint, and officials at various levels of government. Special legal protections make it difficult to hold governments liable for damages, they said.

Federal and state governments and employees engaged in their official duties are shielded from most private lawsuits by a legal doctrine known as sovereign immunity. The doctrine, enshrined in the laws of many countries, stems from the centuries-old principle that the government itself cannot commit a legal wrong, though exceptions have evolved.

While cities in the U.S. are not technically considered to have sovereign status, they are similarly protected by state and federal laws.…

Sovereign immunity … may not apply if the plaintiff can show there was gross negligence. Michigan law, however, shields the state's topmost officials - including the governor, agency heads and Flint's emergency manager - even in cases of gross negligence.

As to the few lawsuits that have been filed so far, the attorneys “are pushing relatively novel theories designed to circumvent immunity. The financially troubled city was governed by a state-appointed emergency manager at the time of the change to the river water.” Reuters notes:

One of the Flint lawsuits, filed in November against the state and local governments and various officials in U.S. district court in Ann Arbor, makes a federal constitutional argument. It contends that the decision to switch the water source denied residents their civil rights to bodily integrity and to be free from state-created danger. The state's response is due next month.

We hope other firms step in to help. As “Robin Greenwald of New York plaintiffs’ firm Weitz & Luxenberg, which is also representing plaintiffs in California,” put it, “’I really believe there must be something to do here … There must be an opportunity for that community to be compensated. They poisoned kids.’”

April 09, 2015

The shocking shooting of Walter Scott by South Carolina police officer Michael Slager has, as the New York Timesput it, “reignited the debate” over video cameras and policing. They write,

Nothing has done more to fuel the national debate over police tactics than the dramatic, sometimes grisly videos: A man gasping “I can’t breathe” through a police chokehold on Staten Island, a 12-year-old boy shot dead in a park in Cleveland. And now, perhaps the starkest video yet, showing a South Carolina police officer shooting a fleeing man in the back.

People lie. Corporations lie. Videos don’t lie. And Michael Slager isn’t the only one who found this out recently. We're talking to you, Chevron.

First some background. Chevron has been engaged in some despicable acts in northern Ecuador:

Chevron (formerly Texaco) deliberately dumped billions of gallons of toxic wastewater and spilled roughly 17 million gallons of oil ("cost-cutting measures") in the rivers and streams of the once-pristine forest. The consequence: a severe public health crisis amongst the indigenous people and farmers of the region. Cancer, birth defects, disease, and poverty for those unlucky enough to live above an American oil company's underground rivers of liquid gold.

A human rights attorney who sued them, Steven Donziger, was then sued by Chevron for "racketeering". Wrote longtime rainforest activist Trudie Styler, who had the “the unfortunate opportunity” of watching (along with husband Sting) this RICO case proceed against her friend, Mr. Donziger:

Filed under the RICO statute -- designed originally to prosecute organized crime syndicates -- Chevron's racketeering lawsuit is the oil giant's alarming and cynical attempt to destroy a two decades-long effort to hold the company accountable. And tragically, they have succeeded.

Instead of owning up to its grave responsibility in Ecuador, Chevron instead has spent millions of dollars creating what appeared to me a modern Kafkaesque drama in the courtroom, where suddenly the victims of Chevron's contamination in Ecuador have become the accused, and the polluter has become the victim; an absurd theatre where justice has been turned on its head.

Incredibly, a New York judge “ruled in Chevron's favor, finding Donziger and his team guilty of attempting to extort money from the company and obstructing justice by ghostwriting the Ecuadoran court's judgment.” Perhaps justice is about to be turned right-side up again.

A whistleblower mailed to the environmental group, Amazon Watch, 47 DVDs of internal Chevron videos in April 2011, along with the note, “I hope this is useful for you in the trial against Texaco/Chevron! Signed, a friend from Chevron.” Amazon Watch showed a few of these DVD’s to VICE News and they are now up on YouTube. Writes VICE,

Amazon Watch and Donziger say the video shows footage from sites that were classified in an agreement between Chevron and the Ecuadoran government as completely remediated — that is, already cleaned up.

"The Chevron secret videos speak for themselves," Donziger said in an email to VICE News. "They clearly show Chevron technicians finding massive amounts of contamination at sites the company had previously claimed had been remediated…. Chevron should be ashamed of its behavior, which our team considers to be not only unethical, but criminal."…

"These videos are Chevron's property, and are confidential documents and/or protected litigation work product," one of Chevron's lawyers wrote in a February 15, 2013 letter to Donziger's attorneys. "Chevron demands that you promptly return the improperly obtained videos and all copies of them by sending them to my attention at the above address."

Larry Veselka, an attorney for Donziger in the suit, replied that Chevron had long been aware that the defendants were in possession of the videos and had never asked for copies to be handed over.

"Nevertheless, because of your objection, however untimely… we will not post the videos to any publically accessible site tonight," he wrote.

April 07, 2015

Article III of the Constitution says this: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” I’m sure by leaving Congress the job of “ordaining and establishing” our federal courts, the Framers had good intentions. But they clearly couldn’t have imagined what a mess Congress would make of this job, especially when led by folks so loathing of the federal government that they won’t even fund their own food safety laws (for example). (It goes back a long way.)

Let’s begin with overcrowding. The Wall Street Journal has a story today about how civil cases “are piling up in some of the nation’s federal courts, leading to long delays in cases involving Social Security benefits, personal injury and civil rights, among others.”

More than 330,000 such cases were pending as of last October—a record—up nearly 20% since 2004, according to the Administrative Office of the United States Courts. The number of cases awaiting resolution for three years or more exceeded 30,000 for the fifth time in the past decade. …

The Seventh Amendment to the U.S. Constitution guarantees the right to a jury trial in civil cases. But the Sixth Amendment gives people in criminal cases the right to a “speedy” trial. The upshot: Criminal cases often displace and delay civil disputes, creating a backlog.

“Over the years I’ve received several letters from people indicating, ‘Even if I win this case now, my business has failed because of the delay. How is this justice?’ ” said Judge Lawrence J. O’Neill in Fresno, Calif., who sits in the Eastern District. “And the simple answer, which I cannot give them, is this: It is not justice. We know it.”

Here’s one big problem: judicial vacancies. In March, the Alliance for Justice published a new report about this ongoing problem, writing:

The process of confirming federal judges has ground to a standstill since Republicans took control of the Senate, delaying justice for millions of Americans, according to a new report from Alliance for Justice. The report comes one day after the Wall Street Journal editorialized that Senate Republicans should refuse to fill circuit court vacancies, meaning that “[i]n 2017 a Republican president would . . . have more judicial openings to fill.”

“There have been no judicial confirmations in the Republican-controlled Senate despite a near doubling of judicial emergencies since January,” said AFJ President Nan Aron. “This delay means that important vacancies remain unfilled and justice goes unserved for millions of Americans. And it appears to be part of a political strategy to leave these seats open, no matter the cost.”

Yet, writes the Wall Street Journal quoting Paul Gordon, senior legislative counsel for People for the American Way, “If every single vacancy were filled by this afternoon, that still wouldn’t be enough to get the work done.”

I’d like to offer one particular reason for this overcrowding problem, which the Journal doesn’t examine. Many in Congress, despite professed hatred for all things federal, can’t stop proposing and occasionally even passing laws that dump state civil cases into federal courts - cases that have no business being in federal court. Take the 2005 “Class Action Fairness Act.” We’ve written a lot about this dumb law:

The so-called federal “Class Action Fairness Act” … tosses (“removes”) into federal court virtually all big consumer class actions, clogging the federal courts and creating unnecessary nightmares for federal judges. Every consumer, environmental and civil rights group was against CAFA, as well as many state Attorneys General.

But OK, Congress passed the law. And by the specific language of the law, Congress instituted a $5 million threshold - the amount in controversy must exceed $5 million. This is supposed to be satisfied by what the named plaintiff in the case pleads when the action is filed. Congress could have gone lower, but it didn’t.

Well now, Big Business wants Congress to indeed go lower - to no threshold at all. And they want to make it easier in other ways to dump even more state class actions into the federal court system.

Others in Congress have had equally dumb ideas, like the so-called “Saving Lives, Saving Costs” Act. As consumer and patients groups explained, this bill would,

[G]ive hospitals, doctors and insurers as well as nursing homes and long-term care facilities – again, not patients – the power to remove a medical negligence case to federal court. Even aside from the discriminatory nature of this provision, it is terrible policy. Cases involving medical negligence and patient harm have absolutely no business clogging the federal court system – a system now struggling with severe budget cuts due to the sequester.

Here’s another example: S. 106, from extreme federal critic, Sen. Vitter (R-LA). His bill would “allow a defendant to remove from a state court to the U.S. district court a civil action involving a claim of environmental contamination that impacts or threatens to impact waters of the United States.”

I’m sure if we looked, there’d be many more like this. Just ridiculous.

March 24, 2015

The American Museum of Natural History in New York City features prominently in Catcher in the Rye yet Holden Caulfield never actually goes in. “Disturbed by the possibility of having to face how he has changed since his last visit” (i.e. on school trips) he thinks, “Certain things, they should stay the way they are. You ought to be able to stick them in one of those big glass cases and just leave them alone.”

I agree. So imagine my shock when visiting the famous dinosaur exhibit there recently, having to pass under a big sign that read, “David H. Koch Dinosaur Wing.” I know that wasn’t there last time I visited. Nor was there a similar sign while attending the New York City ballet, or passing by the outdoor fountain at the Metropolitan Museum of Art. But they're there now.

David Koch of Koch Industries is using his immense wealth to put his name on New York City landmarks. This is someone who would probably be tackled to the ground if he visited any actual New York City neighborhoods. Many people who live here are pretty disgusted by what Koch Industries is doing to America. Turns out we’re not the only ones.

The mobile Natural History Museum has released a lettersigned by “dozens of climate scientists and environmental groups calling for museums of science and natural history to ‘cut all ties’ with fossil fuel companies and philanthropists like the Koch brothers” - climate change deniers, all. Writes the New York Times,"The letter does not mention specific companies, but it does name David H. Koch, who sits on the boards of the American Museum of Natural History in New York and the Smithsonian National Museum of Natural History and has given tens of millions of dollars to those institutions."

What’s more, “Public records show that many fossil-fuel companies have made similar contributions to such organizations and scientists over the years.” There’s also “A petition drive … by environmental organizations including Greenpeace and the Sierra Club, urg[ing] the Smithsonian and the American Museum of Natural History to ‘Kick Koch off the board!’”

The trend of corporate wealth being used to procure cultural and scientific credibility is bad enough. But buying out the First Amendment to the U.S. Constitution? That's perhaps even more disturbing.

Adam Liptak had an analysis in the New York Times today about a new study by a former corporate lawyer and Harvard business professor, John C. Coates IV, who found that “there has been a ‘corporate takeover of the First Amendment.’”

“Corporations have begun to displace individuals as the direct beneficiaries of the First Amendment,” Professor Coates wrote. The trend, he added, is “recent but accelerating.”

Professor Coates’s study was only partly concerned with the Supreme Court’s recent decisions amplifying the role of money in politics.

“It’s not just Citizens United,” he said in an interview, referring to the 2010 decision that allowed unlimited independent spending by corporations in elections. His study, he said, analyzed First Amendment challenges from businesses to an array of economic regulations.

The case on commercial speech, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, was a turning point, Professor Coates found in his study. After that ruling, the average number of First Amendment cases in the Supreme Court involving businesses started to rise to 2.2 a year from 1.5, and the number involving individuals started to fall, to 3.6 from 4.3.

More striking, the success rates for both groups increased, but far more for businesses. Individuals won 55 percent of the time, up from 41 percent. Businesses also won 55 percent of the time, up from 20 percent.

Before 1976, First Amendment challenges from corporations generally involved companies in the business of free expression, like newspapers, book publishers and film producers. More recently, companies have filed free-speech challenges to laws regulating how ordinary products may be marketed or advertised.

Professor Coates also analyzed data from federal appeals courts, finding that “businesses are growing steadily more aggressive in their use of the First Amendment.” Court dockets these days are full of free-speech challenges from pharmaceutical firms, tobacco companies, miners, meat producers and airlines.

As one commenter put it, “This twisted interpretation of corporate free-speech ‘rights’ is the most 1984-ish development I've ever seen in U.S. politics...”

January 15, 2015

A few years ago, the filmmaker Errol Morris wrote a strange and fascinating 5-part series in the New York Times Opinionator blog called “The Anosognosic’s Dilemma: Something’s Wrong but You’ll Never Know What It Is.” Anosognosia, medically speaking, is a neurological condition “in which a person who suffers from a disability seems unaware of or denies the existence of his or her disability.” Or put more simply, it’s an utter lack of self-awareness. Morris also explained the Dunning-Kruger Effect, or “the anosognosia of everyday life.” (This explains so much, right?) Morris also writes,

[V.S.] Ramachandran has used the notion of layered belief — the idea that some part of the brain can believe something and some other part of the brain can believe the opposite (or deny that belief) — to help explain anosognosia.

Morris seemed, in part, like he was trying to understand the subject of his later film, The Unknown Known, about former United States Secretary of Defense Donald Rumsfeld. But I found it incredibly useful in trying to decipher the brain function of Thomas J. Donohue, President and CEO of the U.S. Chamber of Commerce, the nation's largest corporate lobby group. Donohue just gave a speech announcing the “State of American Business 2015” and the Chamber’s priorities for the new Congress. Morris points out that, “by definition one can never be aware of one’s own anosognosia. It takes someone else to point it out.” And one way to diagnose this condition is apparently through the use of an “anosognosia questionnaire.” So let’s do one for Mr. Donahue and then we’ll pass it along. We’ll see if it helps.

In your speech, Mr. Donahue, you complain about lawsuits and announce the need for “legal reform,” i.e., laws that block everyday people from suing big corporations. In literally the next paragraph, you boast about how “extremely busy” the Chamber is filing lawsuits (which it does on average three times a week). Are you aware of how (insanely, we might add) hypocritical your position is?

In your speech, you boast that “the Chamber’s Litigation Center successfully filed a record number of briefs in federal and state courts, and we’ll likely surpass that record this year.” One example? A day after BP was found to be grossly negligent in causing the 2010 BP Deepwater Horizon explosion, the U.S. Chamber filed a brief with the U.S. Supreme Court supporting BP's decision to stop spending money to help businesses it harmed and agreed to compensate. Those businesses, of course, included many of the Chamber's own members. Luckily the Supreme Court said “NO” to this ridiculous petition. However, are you aware that your position was (and continues to be) in direct conflict with the interests of your own members, whose pending claims would be tossed out if the Chamber got its way?

In your speech, you announced that the Chamber will fight to “preserv[e] the availability of arbitration” although you really mean ONLY forced arbitration clauses imposed ON consumers and employees BY big banks, credit card companies, internet companies, payday lenders, nursing homes and other big corporations. If you supported forcing these clauses ON big banks, credit card companies, internet companies, payday lenders, nursing homes and other big corporations, forcing them to arbitrate to resolve their own business disputes, you'd have an insurrection on your hands. Why? Arbitration - they apparently hate it!

[A] study, that included contracts by 21 different telecommunications and financial service companies, found mandatory arbitration clauses jammed into 75 percent of consumer agreements, but just 24 percent of contracts overall. And in previous studies, the report’s authors found that just 11 percent of companies used arbitration clauses when contracting with fellow businesses.

We get it. Forced arbitration is biased, rigged, expensive, unfair and binding. So we gotta ask: any awareness, any at all, of your own duplicity on this matter?

Finally, in your speech, you advocate “passing the FACT Act to help prevent fraudulent asbestos claims.” What fraud? The fraud where BASF and its corporate lawyers, Cahill Gordon & Reindel LLP, were shown to have "systematically collected and destroyed or hid evidence of asbestos-contaminated products produced by a BASF predecessor, Engelhard, in order to evade liability and forge quick settlements"? The fraud "committed on the court" by asbestos company Garlock Sealing Technologies, which, "violated [the judges'] discovery orders, hid evidence from the bankruptcy court and presented false testimony"? The 50 years of fraud committed on millions of people – including former servicemembers - by the entire asbestos industry, which covered-up the lethal effects of asbestos for decades, causing the death of 10,000 people every year - still today! Or the utter lack of fraud by dying asbestos claimants?

The Chamber’s bill would require asbestos trusts to disclose on a public web site private, confidential information about every asbestos claimant and their families, including their names, addresses, where they work, how much they make, some medical information, how much they received in compensation and the last four digits of their social security numbers. (Alert the identity thieves!) At the same time, as noted by the New York Times, the legislation does not ask the companies to do one thing to help the victims, or to disclose any information that could help a claimant with his or her case.

Anything?

Anosognosia is a disease. Step one - admit you have a problem. Hope we've helped.

January 06, 2015

I’m not sure how I feel about the U.S. Environmental Protection Agency these days. Don’t get me wrong – I share no beliefs with climate change deniers or Keystone XL pipeline supporters, whose “dream come true” Congress is now in place. Well, almost. Notes the Associated Press, although Keystone and climate bills promise to pass quickly,

Obama has made clear he will use his veto power if Republicans succeed in getting hostile bills to his desk — especially on climate change. "I'm going to defend gains that we've made on environment and clean air and clean water," he has said. And Sen. Brian Schatz, D-Hawaii, says the Republicans aren't likely to overturn his veto. That would require a number of Democrats to vote against the president. "There's reason to be concerned, but I don't think there's reason to be panicked," Schatz said.

But back to the EPA. Last month, the agency came under severe attack by an unlikely critic, Senator Barbara Boxer (D-CA), during a Senate Environment and Public Works Committee. WritesBloomberg,

And more than 18 months after a fatal blast at a Texas fertilizer depot, it hasn’t decided whether to monitor volatile ammonium nitrate as a chemical risk.

“You’ve done virtually nothing on this,” Senator Barbara Boxer, a California Democrat, told a top EPA official at a hearing today on chemical safety. “There is a lot of talk, but not a lot of action.” …

On chemical safety, assistant administrator Mathy Stanislaus said the EPA would decide next year if it will include ammonium nitrate, a fertilizer ingredient also used as an explosive, in its risk management program. Ammonium nitrate exploded at the West, Texas, fertilizer facility in April 2013, killing 14 in the worst industrial accident in years.

The blast prompted President Barack Obama to order departments and agencies to beef up chemical safety rules. The EPA was given 90 days to decide if it should expand the list of dangerous chemicals it monitors.

“We are evaluating” comments from businesses and the public about whether it should be tracked, Stanislaus told Boxer.

The pledge failed to sway Boxer: “This is unacceptable.”

Perhaps agency funding, or rather lack of it, is to blame for some of this foot-dragging. Last month, the Center for Effective Government noted,

Unfortunately, EPA hasn’t received the support it needs, even from the Obama administration. The president’s FY 2015 request for EPA was almost $310 million below the agency’s FY 2014 budget, a cut of nearly four percent. With the exception of 2010, when EPA’s budget (like those of many other agencies) received a substantial boost from the 2009 Recovery Act, funding for EPA has fluctuated at or well below 2006 levels (in constant 2012 dollars).…

The irony of these cuts is that the vast majority of Americans support strong public health and environmental protections.

It is what it is, I guess. Yet, there have been some environmental bright spots, and they come courtesy not of the federal government, but rather the California courts!

Safeway Inc. has agreed to pay nearly $10 million to settle allegations that its grocery stores improperly disposed of hazardous waste and customers' medical information in California.

The agreement comes after an investigation found that the Pleasanton company was "routinely and systematically" sending hazardous materials such as medicine and batteries to local landfills, the Alameda County district attorney's office said Monday. Safeway was also failing to protect confidential records of its pharmacy customers.

More than 500 Safeway, Vons, Pavilions and Pak 'n Save stores and distribution centers were allegedly engaging in improper waste disposal over a 7 1/2 year period, according to the civil lawsuit filed by the district attorneys of Alameda, Orange, Ventura and several other California counties.…

Prosecutors throughout the state have been cracking down in recent years on environmental violations by big-box retailers. In 2011, Target Corp. agreed to pay $22.5 million to settle a multiyear government investigation into the alleged dumping of hazardous waste. A year earlier, Wal-Mart said it would pay out $27.6 million to settle charges that it improperly handled and disposed of hazardous materials.

Just a reminder that state and local governments need the flexibility to use our courts and other enforcement power to force polluters to clean up their act. After this Congress is finished, state and local enforcement might be the only thing left - as long as they don't stop that too.

December 18, 2014

Earlier this year, Oliver Stone, one of Hollywood’s more courageous film directors, railed against President Obama for being spineless. The same has been said of other Democrats, of course. Now it’s Hollywood - Sony Pictures, more specifically - who's being disparaged for this trait, while President Obama and his party seemed to have suddenly found some backbone.

First Hollywood. It’s been said that Hollywood caters to 16-year-olds. All I know is that Hollywood makes a lot of dumb comedies. The film The Interview was probably one of them, although we’ll never know now that Sony “caved” and won’t release it. Interesting that it took this act for the words “Hollywood” and “spineless” to be suddenly linked in headlines, like this from the The Huffington Post: SPINELESS: Sony, Theaters Cave To Terror Threat.

The same day that happened, however, President Obama stood up to the right and restored diplomatic relations with Cuba. Governor Andrew Cuomo stood up to the oil and gas industry and banned fracking in New York. Not only that, two major federal criminal indictments came down charging corporate executives with major corporate crimes.

Law enforcement agents swooped in during predawn raids … and arrested executives and former staffers of a Framingham [MA] compounding pharmacy blamed for producing tainted drugs that killed dozens in one of the deadliest medication contamination cases in US history.…

Some defendants could face life in prison. Prosecutors called the case an “unprecedented” national tragedy, and the indictments ended two years of waiting for patients and families desperate for justice.

“Production and profit were prioritized over safety,” US Attorney Carmen M. Ortiz said during a packed news conference in her offices at the John Joseph Moakley Courthouse in South Boston.

The indictment alleges that New England Compounding and Medical Sales Management Inc. — a company that shared ownership with NECC and provided it with sales and administrative services — constituted a criminal “enterprise” under the federal racketeering law.

“Let me be clear: Actions like the ones alleged in this case display not only a reckless disregard for federal health and safety regulations but also an extreme and appalling indifference for human life,” acting US Associate Attorney General Stuart Delery said.

And another federal indictment was unsealed relating to Freedom Industries’ January chemical spill that contaminated the Elk River in Charleston, West Virginia, leaving “300,000 residents around West Virginia's capital without usable water for drinking and bathing for days.”

The federal indictment charges former Freedom Industries presidents Gary Southern and Dennis P. Farrell and two others with failing to ensure that the company operated in a reasonable and environmentally sound manner the steel tank that leaked the coal-cleaning chemical.

Southern also faces federal fraud charges related to the company's bankruptcy case. Freedom filed for the protection eight days after the Jan. 9 leak into the Elk River in Charleston. …

U.S. Attorney General Eric Holder said in a statement that the tank conditions at Freedom Industries "were not only grievously unacceptable, but unlawful. They put an entire population needlessly at risk. As these actions make clear, such conduct cannot, and will not, be tolerated."

This all follows the earlier indictment of Don Blankenship, the longtime chief executive officer of Massey Energy, who was indicted on charges that he orchestrated the routine violation of key federal mine safety rules at the company’s Upper Big Branch Mine prior to an April 2010 explosion that killed 29 miners. As we noted in our earlier coverage of this case, CEO indictments almost never happen.

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